Hawkins v. Mcdonald's & Food Indus. Self Ins. Fund of New Mexico

• Citation: 323 P.3d 932
• Decision Date: 12 February 2014
• Docket Number: No. 32,635.,32,635.
• Parties: Michelle LYNN HAWKINS, Worker–Appellee, v. McDONALD'S and Food Industry Self Insurance Fund of New Mexico, Employer/Insurer–Appellants.
• Court: Court of Appeals of New Mexico

323 P.3d 932

Michelle LYNN HAWKINS, Worker–Appellee,

v.McDONALD'S and Food Industry Self Insurance Fund of New Mexico, Employer/Insurer–Appellants.

No. 32,635.

Court of Appeals of New Mexico.

Dec. 17, 2013.

Certiorari Denied, Feb. 12, 2014, No. 34,511.

Titus and Murphy Law Firm, Victor A. Titus, Farmington, NM, for Appellee.

Maestas & Suggett, P.C., Paul Maestas, Albuquerque, NM, for Appellants.

OPINION

VANZI, Judge.

{1} McDonald's (Employer) appeals from a compensation order entered pursuant to the Workers' Compensation Act (the WCA), NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013). Employer contends the Workers' Compensation Judge (WCJ) erred in concluding that Michelle Hawkins (Worker) was entitled to temporary total disability (TTD) and permanent partial disability (PPD) benefits after her termination for cause. We hold that termination of post-injury employment, whether or not for misconduct, does not affect an employee's right to recover TTD benefits under Section 52–1–25.1(B). Further, we hold that, under the facts of this case, Worker may continue to receive that portion of her PPD benefits attributed to physical impairment, as well as those benefits enhanced by the statutory modifiers of Section 52–1–26(C). Accordingly, we affirm the WCJ's award, although we do so on different grounds.

BACKGROUND

{2} The parties do not dispute the essential facts. Worker was employed as a shift manager by Employer prior to and on May 26, 2011. Worker suffered an accident arising out of and in the course of her employment on May 26, 2011, wherein she injured her low back. Worker was released to return to work with a twenty-pound lifting limitation on May 27, 2011, and again on May 31, 2011. Employer offered and provided Worker a light/modified duty job as a shift manager that paid Worker a wage equal to or greater than her pre-injury wage of $8.50 per hour. She worked in that modified capacity for approximately four weeks until she was terminated from employment on July 13, 2011. The reasons for Worker's termination follow.

{3} Employer had a zero-tolerance policy in place prohibiting sexual harassment. The policy required shift managers to immediately notify certain named supervisors if the shift manager was made aware of an incident of sexual harassment. It was not the shift manager's responsibility to investigate any reports of sexual harassment or to determine the validity of the accusation.

{4} Sometime in May 2011, Worker's son and a friend were visiting Worker's home. The son's friend was also employed by Employer. While they were having dinner, the employee reported that she had received a sexually inappropriate message from Employer's store manager. Worker did not witness the alleged sexual harassment, nor did she see the allegedly offending text message. Further, it was Worker's opinion that, based upon her knowledge and prior experiences with the employee, the employee was not particularly trustworthy or credible. As a result, Worker did not report to Employer representatives the allegation—made at her home—of sexual harassment as required by the policy. Employer subsequently became aware of the alleged sexual harassment through other sources and performed an investigation. Employer terminated Worker's employment on July 13, 2011, for failing to report the information made available to her.

{5} On September 28, 2011, Worker filed a complaint seeking to recover TTD or temporary partial disability benefits accrued after her termination on July 13, 2011, as a result of the May 26, 2011 injury she sustained in the workplace accident. Worker's low-back injury reached maximum medical improvement (MMI) on January 11, 2012, at which point she was assigned a two percent whole-person impairment as a result of the injury. During the course of the proceedings, she subsequently also sought the modifier portion of any PPD benefits that she may have been entitled to after reaching MMI.

{6} Following a trial, the WCJ issued a compensation order finding that Worker's termination did not disqualify her from receiving TTD benefits prior to reaching MMI and PPD benefits subsequent to reaching MMI. The WCJ found that Employer was acting within its authority when it terminated Worker for violating company policy. However, the WCJ stated, “Not every action giving rise to termination of employment is of a nature or character or quality sufficient to warrant a denial of indemnity benefits” and that, therefore, Employer could not avoid paying benefits to Worker in this case. Based upon her average weekly wage of $275.61, the WCJ awarded Worker TTD benefits at a compensation rate of $183.74 from July 14, 2011 to January 11, 2012. The WCJ also concluded that Worker was entitled to PPD benefits at “eleven percent ... of her compensation rate commencing on January 11, 2012[,] and continuing until conclusion of the benefit period or until further order.” The PPD benefits included, among other things, the two percent permanent physical impairment, plus additional modifier benefits based upon Worker's age, education, and physical capacity. Finally, the WCJ determined that Worker was entitled to ongoing reasonable and necessary medical benefits and attorney fees. This appeal followed.

DISCUSSIONStandard of Review

{7} The issues on appeal concern the scope of Section 51–1–25.1(B) of the WCA, which defines when a worker is entitled to TTD benefits prior to reaching MMI, and Section 52–1–26(D) of the WCA, which defines when a worker is entitled to PPD benefits after reaching MMI. We must decide whether, and to what extent, a worker's termination from post-injury employment serves to disqualify that worker from receiving either or both of these benefits.

{8} We review workers' compensation cases under a whole record standard of review. Moya v. City of Albuquerque, 2008–NMSC–004, ¶ 6, 143 N.M. 258, 175 P.3d 926. We review statutory interpretation de novo. Kahrs v. Sanchez, 1998–NMCA–037, ¶ 11, 125 N.M. 1, 956 P.2d 132. When construing a statute, “our guiding principle is to determine and give effect to legislative intent.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm'n, 2007–NMSC–053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “[T]he plain language of a statute is the primary indicator of legislative intent. Courts are to give the words used in the statute their ordinary meaning unless the [L]egislature indicates a different intent.” Johnson v. N.M. Oil Conservation Comm'n, 1999–NMSC–021, ¶ 27, 127 N.M. 120, 978 P.2d 327 (internal quotation marks and citations omitted). However, we also recognize that the “beguiling simplicity [of the plain meaning rule] may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute's meaning.” State ex rel. Helman v. Gallegos, 1994–NMSC–023, ¶ 23, 117 N.M. 346, 871 P.2d 1352;see Draper v. Mountain States Mut. Cas. Co., 1994–NMSC–002, ¶ 4, 116 N.M. 775, 867 P.2d 1157 (explaining that the intention of the Legislature will prevail over the strict meaning of the literal language). Accordingly, “[w]e should not attribute to the [L]egislature an undue precision in drafting and thereby frustrate legislative intent when we construe a statute.” Jeffrey v. Hays Plumbing & Heating, 1994–NMCA–071, ¶ 10, 118 N.M. 60, 878 P.2d 1009. We reiterate that “our task is not to apply language literally when it would lead to counterproductive, inconsistent, and absurd results; we must harmonize the statutory language to achieve the overall legislative purpose.” Eldridge v. Circle K Corp., 1997–NMCA–022, ¶ 29, 123 N.M. 145, 934 P.2d 1074.

A Worker's Termination From Employment Does Not Limit Her Entitlement to TTD Benefits Under Section 52–1–25.1(B)

{9} Section 52–1–25.1 of the WCA limits the payment of TTD benefits to an injured worker prior to the date of MMI in only two circumstances. First, if the worker is released to return to work and the employer offers work at the worker's pre-injury wage, or if the worker accepts employment elsewhere at the worker's pre-injury wage, then “the worker is not entitled to [TTD] benefits.” Section 52–1–25.1(B). Second, if the worker is released to work and the employer offers work at less than the worker's pre-injury wage, the worker is entitled to two-thirds of the difference between the pre-injury wage and the post-injury wage. Section 52–1–25.1(C).

{10} Employer argues that it “complied” with the provisions of Section 52–1–25.1(B) when it offered and provided Worker a light/modified duty job after her May 26, 2011 accident at her pre-injury wage. Employer further contends that once it satisfied the requirements of Section 52–1–25.1(B), and Worker was then terminated for violating its sexual harassment policy—a reason unrelated to her injury—Worker was no longer entitled to TTD benefits.

{11} The statute does not explicitly address whether an employee is entitled to benefits in a situation where she has been offered employment at her pre-injury wage and has been subsequently terminated, whether for misconduct or otherwise. The reading Employer advocates is technically consistent with the plain language of Section 52–1–25.1(B); the statute clearly says that once an employer has offered a worker a job at her pre-injury rate, the worker is “not entitled to [TTD] benefits.” This reading, however, is wholly inconsistent with the policy and purpose of the WCA, and would necessarily lead to absurd and unjust results, for it would require this Court to conclude that any employee who is terminated can no longer receive benefits, regardless of the reason for the discharge. Accordingly, we must reject it. We explain.

{12} The WCA was created to offset the lost wages of a worker injured by a work-related accident, while promoting a policy in which workers would not become dependent on state welfare programs. See Casias v. Zia Co....